In 2014, a Massachusetts judge made headlines with a ruling in an upskirt photography case. He found that, under Massachusetts’s existing laws at the time, the defendant had not broken any laws because the victims were in public and not nude. This highlighted a legal gap in their state laws, wherein upskirt photography was not a crime unless nudity was involved. The ruling prompted Massachusetts legislators to write a law specifically banning upskirt photography.
However, California legislators did not need to draft such a law after the ruling, because existing laws already made upskirt photography a crime. California Penal Code 647(j)(3) prohibits using any electronic device to view through or under a person’s clothing without their consent. Vista defense attorney Peter Liss explains what this law covers and how it differs from laws in other states.
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What Counts as Upskirt Photography?
Upskirt photos and videos are those taken under a person’s clothing without their knowledge —often in a public place. While most people believe this is automatically a crime because it violates a person’s privacy, the fact is that, as the Massachusetts judge ruled, you are allowed to take pictures of people in public places. In fact, doing so is a protected First Amendment right.
However, secretly photographing someone underneath their clothing without consent is not a protected activity, and many states, including California, specifically criminalize this conduct.
Is Upskirt Photography Illegal in California?
California state Penal Code 647 (PC) covers a wide variety of behaviors, including prostitution, public intoxication, panhandling, loitering, and more. Upskirt photography falls under 647(j) (PC), known as the criminal invasion of privacy, which prohibits spying on someone in a private room or under their clothing using a device like a camera (including cell phone cameras), video camera, binoculars, or telescope.
What are the Penalties for Taking Upskirt Photos in California?
In most cases, this offense is punishable by up to six months in jail and a fine of $1,000. However, if the defendant has a prior conviction or the victim is a minor, the offense is punishable by up to one year in jail and $2,000 in fines.
Anyone accused of sharing these images with others can also be charged with the state’s revenge porn law, 647(j)(4) (PC), which is technically a subsection of the greater criminal invasion of privacy statute. Under this law, if a person shares a sexually explicit image of another person without their consent and causes the victim emotional distress, the defendant can face 6 months in jail and $1,000 in fines.
When the victim is a minor, it is also possible for defendants to be charged with production of child pornography —even if the victim is not fully nude in the images.
Prosecutors in Vista and the rest of San Diego take these types of charges very seriously because of the psychological harm these crimes can do to the victims. They are quick to file charges for both upskirt photography under 647(j) and revenge pornography under 647(j)(4) (PC).
Defenses to Upskirt Photography Charges
The right defense to these charges will depend on the specifics of the case, but may include:
- No intent to invade privacy —such as accidentally capturing images after dropping your camera.
- The victim had no reasonable expectation of privacy —for example, they changed clothes on a public beach.
- The person in the material consented —to produce adult content, for example.
- The evidence against you was obtained through an illegal police search.
These cases can be highly technical and very sensational. Avoid discussing the charges with anyone but your attorney and invoke your right to silence when questioned by the police.
You Can Fight Upskirt Photo Charges in Vista
Even misdemeanor invasion-of-privacy charges can carry serious consequences, including jail time, fines, probation, and long-term reputational harm. A defense attorney like Peter M. Liss can help you fight criminal charges, but it is important to act quickly to protect your rights, freedom, and reputation. You can schedule a free initial consultation by calling (760) 643-4050.
Frequently Asked Questions About Upskirt Photography Laws
What Happens if the Victim Is a Minor?
When someone takes upskirt photos of a minor, they will face enhanced penalties. Instead of a maximum sentence of six months in jail and a $1,000 fine, they may face up to a year in jail and a $2,000 fine. In some cases, prosecutors may also file child pornography charges against the defendant.
Can You Be Charged for Sharing the Images?
Yes. Sharing upskirt photos or videos without the consent of the individual depicted falls under the state’s revenge porn law. This offense is punishable by up to 6 months in jail and $1,000 in fines. Enhanced penalties may apply for repeat offenses or if the victim is a minor.
